Nonprofit, independent journalism. Supported by readers.


Exploring the argument for opening an impeachment inquiry

Part of the excuse being used by the administration to deny cooperation with any further congressional inquiry into potential crimes and misdemeanors is that Congress lacks a valid “legislative purpose” for the witnesses and materials it seeks.

President Donald Trump
President Donald Trump speaking about the investigations into himself and his administration by Special Counsel Robert Mueller and Congressional Democrats in the Rose Garden on Wednesday.
REUTERS/Leah Millis

Anyone who actually thinks Donald Trump was completely and totally exonerated by the Mueller investigation (which specifically states “not exonerated’ on obstruction of justice) simply doesn’t want to know the truth or can’t handle the truth. That’s their business, I guess.

(And, by the way, the argument that it’s impossible to commit obstruction of justice if there is no underlying crime is rubbish. There were underlying crimes, which is why several Trump associates and former campaign and administration officials are serving time. But even if that weren’t the case, Richard Nixon, when he resigned, was about to be impeached for obstruction of justice.)

Personally, I do want to know the truth, including the truths that the current incumbent wants to keep us from knowing by refusing to comply with subpoenas for his financial records and requests for so many of his appointees to appear before congressional committees. And Trump’s stonewalling adds an important legal argument for the House to open impeachment hearings.

So far, I’ve been ambivalent about the impeachment question, in part because House Speaker Nancy Pelosi has not wanted to go there and I consider her a smart tactician/strategist who probably doesn’t see the point of the House impeaching when there is roughly zero chance of getting a two-thirds vote in the Senate to convict and remove Trump. But recently, her position on impeachment has evolved, and perhaps this is why.

Article continues after advertisement

There’s a powerful argument for opening an impeachment inquiry, to which I (and perhaps Speaker Pelosi) give some weight. Herewith:

Part of the current excuse being used by the administration to deny cooperation with any further congressional inquiry into potential crimes and misdemeanors is that Congress lacks a valid “legislative purpose” for the witnesses and materials it seeks or the witnesses it would like to question.

This claim is obnoxious and insincere, but at this point words like that have little impact. Congress certainly has played a traditional “oversight” role over the executive branch, which might take care of that objection.

But, sadly, I must tell you that as far as I can discern there is really nothing in the Constitution that explicitly establishes that “oversight” role. It has long been described as an “implied power,” but I guess the specifics of such implications are in the eye of the beholder. Sad but true, and who knows how important that might be in a fight over next steps to ascertain Trump’s guilt or innocence?

But the Constitution does clearly assign the U.S. House the power to impeach the president for “treason, bribery and other high crimes and misdemeanors.” Treason and bribery are fairly clear, and there is a least room for discussion of either or both in the Trump context. A scheme to pay hush money to cover up adultery by a candidate for president, for example, could easily be described as bribery. And we already have sworn congressional testimony from Michael Cohen on that score.

But high crimes and misdemeanors are pretty much whatever the House decides they are. So opening an impeachment inquiry would pretty much settle the question of whether Congress had a valid constitutional reason to investigate possible crimes and misdemeanors involving the president.

On the slight chance that Trump gives a rip about the Constitution, it would be interesting to see what excuses he might have to contrive to refuse turning over documents or allowing members of his administration to testify if the House were acting under its explicitly constitutional power to impeach.

In fact, it could be argued that refusing to cooperate is itself an impeachable offense. And, at the moment, Trump is saying loudly that any evidence that the House is interested in pursuing investigations of him or, gasp, the first stages of the impeachment process, might inspire him to new levels of acts of impeachable offenses.

Or is it possible that Donald Trump just doesn’t want the American people to know the truth, perhaps because, as Jack Nicholson’s character put it forcefully in this famous scene from “A Few Good Men,” we “can’t handle the truth.” The scene is from a Marine court martial about an alleged cover-up.

Article continues after advertisement

(By the way, I’m completely stealing much of the argument above from this excellent Lawfare article by Molly Reynolds and Margaret L. Taylor of Brookings.) But they didn’t include the movie clip.